79 Cal. 283 | Cal. | 1889
This action was brought to establish a resulting trust. The property in controversy is a quarter-interest in a mining claim situate in Butte County. The complaint alleges that defendant purchased the interest for the sum of five hundred dollars, and took a deed therefor in his own name, but that in doing so he acted for and as the agent of plaintiff, and that plaintiff paid the purchase-money. The court found all the facts to be as alleged in the complaint, and rendered judgment accordingly. The defendant moved for a new trial, and has appealed from the judgment and order denying his motion.
The principal question presented for decision by appellant relates to the finding as to the amount and payment of the purchase-money. The contention is, that appellant paid for the property fifteen hundred dollars, and not five hundred' dollars, as found by the court, and had therefore a right to retain the title until he received from plaintiff the balance of the purchase price.
But no such defense was set up, or even hinted at, in the answer. It cannot, therefore, be raised here for the first time. The case was properly tried upon the issues presented by the pleadings, and upon all of those issues there was ample evidence to justify the findings.
It is further contended that the finding that defendant, shortly before the commencement of this suit, repudiated the understanding between the plaintiff and himself, and
No other points are made, and it follows that the judgment and order appealed from should be affirmed.
Foote, C., and Hayne, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.